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Perez v. Monmouth Cable Vision

Decided: December 23, 1994.

MILTON PEREZ, PETITIONER-APPELLEE,
v.
MONMOUTH CABLE VISION, RESPONDENT-APPELLANT.



On appeal from the New Jersey Department of Labor, Division of Workers' Compensation.

Before Judges Shebell and Kleiner. The opinion of the court was delivered by Shebell, P.J.A.D.

Shebell

The opinion of the court was delivered by

SHEBELL, P.J.A.D.

Petitioner, Milton Perez, filed two Workers' Compensation Claim Petitions alleging that as the result of "climbing, installing, pulling wire [and] carrying ladder[s]" while employed by respondent, Monmouth Cable Vision, he suffered permanent disability in his right hand. Claim petition number 91-057624, alleged an accident claim, and claim petition number 92-038696, alleged an occupational exposure. The occupational claim alleged exposure from 1986 to the time of filing on December 11, 1991. The accident was alleged to have occurred on November 13, 1991. Petitioner claimed that he sustained "aggravation, acceleration, exacerbation of pre-existing injury to right wrist, involving nerves and ligaments requiring surgery, [and] neurologic sequelae." The claim petitions were consolidated for trial.

The trial was held on March 8, March 29, and May 10, 1993. On May 12, 1993, the Judge issued his decision. He found in favor of the petitioner, and awarded 12 1/2% permanent partial disability of petitioner's right hand, amounting to $3,154.38. Respondent appeals.

The respondent stipulated that the petitioner was in the employ of the respondent on the dates alleged in the two claim petitions. It was agreed by the parties that all medical and temporary disability benefits have been paid.

The petitioner testified that he was employed by respondent in 1986, but prior to that he worked at Mike's garage where he sustained a laceration to his right wrist requiring sixteen to twenty stitches. Petitioner first worked as an installer for the

respondent, running cable from the poles to the houses. He was later promoted to service technician. Petitioner gave the following description of his installing duties:

We take the cable from a spool weighing 50 to 75 pounds, put it on a caddy, pull the cable from the pole or from the house pull it, you get it up the pole, you pull the cable and you tighten it up.

Petitioner testified that he worked eight hours a day and that his duties were performed "on a constant, repetitive, weekly basis."

Petitioner worked for respondent for approximately four years before having problems with his wrist. He indicated that his right hand then began to bother him and that his right thumb started going numb. He mentioned the numbness to his supervisor and indicated that he had a lump. The lump became increasingly bigger as time went on. On November 13, 1991, petitioner had the lump removed by same-day surgery. The lump was a neuroma, which is a benign tumor growing on a nerve.

Petitioner was out of work for about four days. When he returned, he was placed on light duty for about two weeks. He then returned to his regular job, which involved wire repair, climbing poles, carrying a 50 to 75 pound ladder and pulling cable. Petitioner did not lose any further time from work because of his right thumb, nor did he receive any post-operative treatment. In October 1992, petitioner was promoted to a supervisory position, which basically entails paperwork except when he may be required to substitute for an absent installer.

Petitioner testified that he still has "problems" with his right hand and that his thumb still goes numb. He testified that he has a loss of grip strength in his right hand, because he cannot use his thumb. He has pain in his wrist, which occurs when he's playing with his children and they grab his wrist, or if anyone were to squeeze his wrist. He testified that he still played sports but not as well as he used to. He plays volleyball every Wednesday night for about two hours and in September 1992, he began weightlifting

twice a week. When he first started weightlifting, he had trouble with his right hand, but he has improved with time.

Petitioner was examined by Dr. Riss, at his attorney's request, and Dr. Sawyer, at the respondent's request. Dr. Riss testified that he examined the petitioner on April 30, 1992. At the time of the examination, he reviewed the operative report, the same-day surgery report, and the pathology report. These reports were admitted into evidence. Dr. Riss elicited the same subjective complaints from the petitioner as petitioner had testified to at trial. Dr. Riss stated that he considered the subjective complaints along with his objective examination to verify if the complaints were reasonably in accordance with his findings. He maintained that his estimation of disability was based on demonstrable objective medical evidence of restriction of function.

Dr. Riss recounted:

My examination revealed a 5.9 centimeter scar over the anterior right wrist. There was tenderness to palpation over the anterior and lateral aspects of the wrist. Wrist flexion was 50 degrees on the right and 65 degrees on the left. Extension was 45 degrees on the right and 60 degrees on the left. Inversion was 35 degrees on the right and 45 degrees on the left. Eversion was five degrees on the right and ten degrees on the left. Pronation was complete. Supination was to 160 degrees on the right as compared to 180 degrees on the left.

The strength was diminished on the right as compared to the left. The petitioner is right-hand dominant. Sensation was equal and normal.

I examined the thumb and flexion of the first digit of the metacarpal phalangeal joint was 45 degrees on the right and 75 degrees on the left. Extension was 180 degrees bilaterally. Flexion of the interphalangeal joint of the first digit was 80 degrees bilaterally. Extension was to 180 degrees bilaterally. He was able to make a fist. He was able to flex, flair, extend, and oppose all digits. Examination of the circumference of the right and left forearms measured 31 and three-quarter centimeters. The right wrist measured 18 and one-quarter centimeters and the left wrist measured 17 and three-quarters centimeters. The right palm measured 23 centimeters and the left palm measured 22 and three-quarters centimeters.

Dr. Riss diagnosed the petitioner as having "neuroma, right hand, status-post excision of neuroma with primary repair of sensory nerve." Dr. Riss reported:

It was my opinion that there was demonstrable, objective medical evidence of restriction of function and lessening to a material ...


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